Judgement

    RECOMMENDED FOR FULL-TEXT PUBUCA T/ON 
Pursuant to Sixth Circuit Rule 24

No. 92-6196

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Cleam tee Garner , Father and 
next-of-kin of Edw ard  Eugene 
Garner , a deceased minor,

Plaintiff-Appellant,

V.

Memphis Police  Departm ent; 
City of  Mem phis, Tennessee , 

Defendants-Appellees.

On Appeal from the 
United States District 
Court for the Western 
District of Tennessee

Decided and Filed October 22, 1993

Before: MERRITT, Chief Judge; and KEITH and
SUHRHEINRICH, Circuit Judges.

MERRITT, Chief Judge, delivered the opinion of the 
court, in which KEITH, Circuit Judge, joined. 
SUHRHEINRICH, Circuit Judge (pp. 15-22), delivered a 
separate dissenting opinion.

MERRITT, Chief Judge. This is a wrongful death 
action brought under 42 U.S.C. § 1983 which has now 
been to this court three times and once to the Supreme 
Court. It involves the fatal shooting by a Memphis police

1



officer of a fifteen-year-old fleeing felony suspect under 
circumstances which this court and the Supreme Court 
have held violated the Fourth Amendment right to be free 
from unreasonable seizure. Gamer v. Memphis Police 
Dept., 710 F.2d 240 (6th Cir. 1983); Tennessee v. 
Gamer, 471 U.S. 1 (1985). The case was back before 
the district court on remand from the Supreme Court for 
consideration of whether the shooting occurred pursuant 
to municipal "policy" under Monell v. New York City 
Dept, o f Social Services, 436 U.S. 658 (1978). On 
remand, the district court held that the Supreme Court's 
ruling in this case should not be applied retroactively to 
this case. Accordingly, the court entered summary 
judgment in favor of the defendants, and denied plaintiffs 
motion for partial summary judgment on the issue of 
liability. Plaintiff appeals both rulings. We reverse the 
district court's grant of summary judgment in favor of the 
defendants and its denial of plaintiff's partial summary 
judgment motion. We also remand for entry of an order 
granting plaintiff's motion for partial summary judgment 
and for a determination of damages.

I.

On the night of October 3, 1974, a fifteen-year-old, 
unarmed boy broke a window and entered an unoccupied 
residence in suburban Memphis to steal money and 
property. Two police officers, Elton Hymon and Leslie 
Wright, were called to the scene by a neighbor. The 
officers intercepted the youth as he ran from the back of 
the house to a six foot cyclone fence in the back yard. 
After shining a flashlight on the boy as he crouched by the 
fence. Officer Hymon identified himself as a policeman 
and yelled "Halt.^ He could see that the fleeing felon was 
a youth and was apparently unarmed. As the boy jumped 
to get over the fence, the officer fired at the upper part of 
the body, as he was trained to do by his superiors at the 
Memphis Police Department. He shot because he 
believed the boy would elude capture in the dark once he 
was over the fence. The youth died of the gunshot

2 Garner v. Memphis Police Dept., et al. No. 92-6196



wound. On his person was ten dollars worth of money 
and jewelry he had taken from the house.

Officer Hymon had been taught that it was proper under 
Tennessee law to kill a fleeing felon rather than run the 
risk of allowing him to escape. A Tennessee statute 
provided that "[i]f, after notice of the intention to arrest 
the defendant, he either flee or forcibly resist, the officer 
may use all the necessary means to effect the arrest.” 
Tenn. Code Ann. § 40-7-108.^ The Memphis Police 
Department’s policy on use of deadly force was slightly 
more restrictive than the statute, but still allowed the use 
of deadly force in cases of burglary. Tennessee v. 
Gamer, 471 U.S. at 5. The Police Department's policy 
was promulgated by the Department's Director, with the 
consultation and approval of the Mayor.

Decedent's father filed this action under 42 U.S.C. 
§ 1983 to recover damages for wrongful death caused by 
claimed constitutional violations of the Fourth, Eighth and 
Fourteenth Amendments. The complaint named as 
defendants Officer Hymon, the Police Department, its 
Director, the City of Memphis, and the Mayor of 
Memphis. After a three day bench trial, the district court 
dismissed the claims against the Director and the Mayor 
for lack of evidence. It also dismissed the claims against 
Officer Hymon, holding that his actions were authorized 
by the Tennessee statute, which the court held was 
constitutional. In accordance with Monroe v. Pape, 365 
U.S. 167 (1961), the district court also dismissed the 
claims against the City and the Police Department, 
holding that a city is not a "person” subject to suit under 
§ 1983.

On appeal, this court affirmed the district court's 
dismissed of the individual defendants, holding that they 
were protected by the doctrine of qualified immunity 
because they acted in good faith reliance on Tenn. Code

No. 92-6196 Garner v. Memphis Police Dept., et al. 3

 ̂At the time of the shooting, this statemrait was codified at Tenn. 
Code Aim. § 40-808.



Ann. § 40-7-108. Gamer v. Memphis Police Dept.y 600 
F.2d 52 (6th Cir. 1979) {Gamer I). We also remanded 
for reconsideration of the possible liability of the City and 
Police Department in light of Monell v. Department o f  
Social Services^ 436 U.S. 658 (1978), which had come 
down after the district court's decision.

Because Monell held that a city may be liable in 
damages under § 1983 for constitutional deprivations that 
result from a "policy or custom" followed by the city, 436 
U.S. at 694, 700-01, we instructed the district court to 
consider the following: (1) whether a municipality enjoys 
qualified immunity; (2) whether the use of deadly force 
was unconstitutional under the circumstances; (3) whether 
the use of hollow point bullets was unconstitutional; and 
(4) whether any unconstitutional municipal conduct 
flowed from a "policy or custom" under Monell. Gamer 
I, 600 F.2d at 54-55.

On remand, the district court ordered memoranda and 
oral argument on the issue of whether the trial should be 
reopen^. Upon consideration of the parties’ 
submissions, the court denied further hearings and 
dismissed the case on the merits, holding that the 
constitutional claims had already been fully adjudicated. 
Because there had been no constitutional violation, the 
holding of Monell that cities could be liable for violations 
occurring pursuant to a policy or custom of the city did 
not require a different result. Plaintiffs motion for 
reconsideration was granted and he was allowed to submit 
further briefs and make an offer of proof. The court 
considered the offer of proof and once again ruled against 
plaintiffs. It held that the wisdom of a statute permitting 
the use of deadly force against all fleeing felons was a 
matter of policy for the legislature rather than the 
Judiciary, and that the Tennessee statute was not 
unconstitutional on its face, nor as applied by the police 
officer in this case.

Addressing the question of the City's good faith 
immunity, the district court held that Owen v. City o f

4 Gamer v. Memphis Police Dept., et al. No. 92-6196



Independence^ 445 U.S. 622 (1980), prevented the City 
from claiming immunity from liability based on the good 
faith of its agent. Nevertheless, it found that it was still 
an open question whether the City might claim immunity 
if the City itself was relying in good faith on the 
Tennessee law as interpret^ by the federal and state 
courts. The district court did not believe it necessary to 
address the constitutionality of the use of hollow point 
bullets, because it found that there was no causal 
connection between the use of hollow point bullets and 
Gamer's death.

We reversed and remanded, holding that Memphis' 
deadly force policy, as applied to this case, violated the 
Fourth Amendment right to be free from unreasonable 
seizures. Gamer v. Memphis Police Dept.y 710 F.2d 
240, 246 (6th Cir. 1983) {Gamer II). We held that police 
officers cannot resort to deadly force to apprehend fleeing 
felons unless they have "probable cause--an objective, 
reasonable basis in fact to believe that the felon is 
dangerous or has committed a violent crime." Id. The 
Supreme Court granted certiorari and affirmed. TTie 
Court held that the Tennessee statute "is invalid insofar as 
it purported to give Hymon the authority to act as he did." 
Tennessee v. Garner^ 471 U.S. at 22. Hght years ago the 
case was remanded to the district court for resolution of 
the Monell issue, and there it languished.

On remand, plaintiff filed a motion for partial summary 
judgment on the issue of the liability of the City and 
Police Department under Monell. Plaintiff attached two 
exhibits to the motion. The first was a copy of General 
Order No. 5-74, the Police Department policy statement 
authorizing use of deadly force in certain circumstances. 
The second exhibit was deposition testimony by the 
Mayor of Memphis, in which the Mayor states that he 
considered whether all types of burglary should be 
included on the list of felonies justifying use of deadly 
force, and concluded that they should. Defendants 
responded to the motion by asserting various legal 
arguments; they did not submit any additional evidence.

No. 92-6196 Gamer v. Memphis Police Dept., e ta l. 5



Last year, the district court finally denied plaintiffs 
motion for partial summary judgment and granted 
summary judgment in favor of the defendants, holding 
that, under Carter v. City o f Chattanooga, 850 F.2d 1119 
(6th Cir. 1988) (en banc), cert, denied, 488 U.S. 1010 
(1989), the Supreme Court's ruling in Tennessee v. 
Gamer should not be applied retroactively to the parties. 
'Hie court then dismissed the case. Plaintiff filed this 
timely appeal, challenging both the grant of summary 
judgment in favor of the defendants and the denial of 
plaintiff's motion for summary judgment.

II.

We first consider the district court's holding that 
defendants are not liable because of their good faith 
re li^ce  on previous judicial determinations that their 
fleeing felon policy was constitutional. The court based 
its decision upon Carter v. City o f Chattanooga, Tenn. , 
850 F.2d 1119 (6th Cir. 1988) (en banc), cert, denied, 
488 U.S. 1010 (1989). In Carter, a case factually similar 
to this one, this court held that ” Tennessee v. Gamer 
should not have been retroactively applied to the City of 
Chattanooga. . . . [The City] was not at the time 
following a clearly established unlawful or 
unconstitutional policy." Id. at 1137. Carter's 
retroactivity analysis is clearly not relevant to the instant 
case. In Tennessee v. Gamer, the Supreme Court applied 
its ruling retroactively to these parties. Neither this court 
nor the district court is free to reexamine the Supreme 
Court's ruling and reach a different conclusion. 
Moreover, this case is itself the case in which the 
Supreme Court declared the fleeing felon rule, and it is 
hornbook law that the rule should be applied retroactively 
in the very case that lays down a rule. Otherwise parties 
would have no incentive to argue for such a rule because 
they would get no benefit from winning the case.

Although the Supreme Court did not explicitly state that 
its holding was to be applied retroactively to the parties 
before the Court, the Court's intent is unmistakable:

6 Gamer v. Memphis Police Dept., et al. No. 92-6196



We wish to make clear what our holding means in 
the context o f this case. . . . The possible liability 
of the remaining defendants—the Police
Department and the city of Memphis—hinges on 
Monell V. New York City Dept, o f Social Services^
436 U.S. 658 (1978), and is left for remand. We 
hold that the statute is invalid insofar as it 
purported to give Hymon the authority to act as he 
did. As for the policy of the Police Department, 
the absence of any discussion of this issue by the 
courts below, and the uncertain state of the record, 
preclude any consideration of its validity.

Tennessee v. Garner^ 471 U.S. at 22 (emphasis added).

The conclusion that the Supreme Court intended its 
holding to be applied to the parties before the Court is 
compelled by the reasoning of James B. Beam Distilling 
Co. V. Georgia, 111 S. Ct. 2439 (1991). In Beam, the 
Court considered whether its holding in Bacchus Imports 
V. Dias, 468 U.S. 263 (1984), should be retroactively 
applied in other cases pending when Bacchus was decided. 
As in Tennessee v. Gamer, the Supreme Court in Bacchus 
had remanded the case to the district court for further 
proce^ings without explicitly stating that the rule 
established in the case was to be app li^  retroactively to 
the parties before the Court. The Beam court held 
unanimously that Bacchus* silence on the retroactivity 
issue indicated that the Court intended to follow the usual 
practice of applying its decision to the parties before it. 
See Beam, 111 S. Ct. at 2445 (plurality opinion) 
("Because the Bacchus opinion did not reserve the 
question whether its holding should be applied to the 
parties before it . . , it is properly understood to have 
followed the normal rule of retroactive application in civil 
cases."); see also id. at 2451 (O'Connor, J., dissenting) 
("I agree that the Court in Bacchus applied its rule 
retroactively to the parties before it. The Bacchus opinion 
is silent on the retroactivity question. Given that the usual 
course in cases before this Court is to apply the rule 
announced to the parties in the case, the most reasonable

No. 92-6196 Garner v. Memphis Police Dept., et al. 7



reading of silence is that the Court followed its customary 
practice."). The same reasoning applies to Tennessee v. 
Gamer.

The Supreme Court intended its ruling in this case to be 
applied retroactively to the parties. The defendants do 
not, therefore, have a non-retroactivity defense based 
upon their good faith reliance upon previous judicial 
decisions. Because the district court's grant of summary 
judgment in favor of the defendants was based solely upon 
a retroactivity analysis, the court's ruling must be 
reversed.

in.
We now consider the district court's denial of plaintiff's 

motion for partial summary judgment on the question of 
liability. A denial of summary judgment is an 
interlocutory order, not ordinarily subject to appeal. 
Nazay v. Miller, 949 F.2d 1323, 1328 (3rd Cir. 1991). 
Where, however, an appeal from a denial of summary 
judgment is presented in tandem with an appeal from a 
grant of summary judgment, this court has jurisdiction to 
review the propriety of the district court's denial of 
summary judgment. Id.

Plaintiff's motion for partial summary judgment asserts 
that there remain no genuine issues of material fact, and 
that the law clearly establishes defendants' liability. 
Defendants' response to the summary judgment motion 
raises only legal arguments and does not assert that there 
remain genuine issues of material fact. Where a motion 
for summary judgment is denied on the grounds that there 
exists a genuine issue of material fact, review of this 
ruling is under the abuse of discretion standard. Pinney 
Dock and Transport Co. v. Penn Cent. Corp., 838 F.2d 
1445, 1472 (6th Cir.), cert, denied, 488 U.S. 880 (1988). 
Where, however, a denial of summary judgment is b a s^  
solely upon legal grounds, review is de novo. See Eugene 
D. V. Karman, 889 F.2d 701, 706 (6th Cir. 1989), cert, 
denied, 496 U.S. 931 (1990) . Because the district court

8 Gamer v. Memphis Police Dept., et al. No. 92-6196



denied plaintiffs partial summary judgment motion solely 
upon legal grounds, we review this denial de novo.

As the Supreme Court stated, defendants' liability 
hinges on Monell. Tennessee v. Garnery 471 U.S. at 22. 
In Monelly the Supreme Court overruled Monroe v. Papey 
365 U.S. 167 (1961), and held that municipalities are 
"persons" subject to suit under § 1983. Monelly 436 U.S. 
at 700-01. Municipalities are not, however, liable for 
every misdeed of their employees and agents. "Instead, it 
is when execution of a government's policy or custom, 
whether made by its lawmakers or by Uiose whose edicts 
or acts may fairly be said to represent official policy, 
inflicts the injury that the government as an entity is 
responsible under § 1983." Id. at 694. This circuit has 
stated that to satisfy the Monell requirements a plaintiff 
must "identify the policy, connect the policy to the city 
itself and show that the particular injury was incurred 
because of the execution of that policy." Coogan v. City 
o f Wixoniy 820 F.2d 170, 176 (6th Cir. 1987) (adopting 
the test articulated in Bennett v. City o f Slidelly 728 F.2d 
762, 767 (5th Cir. 1984) (en banc), cert, deniedy A ll  
U.S. 1016 (1985)). Plaintiff has met this standard.

First, it is clear that the defendants had a policy 
authorizing use of deadly force when necessary to 
apprehend a fleeing burglary suspect. Memphis Police 
Department General Order 5-74(3)(b)(3) provides:

(3) Other Felonies Where Deadly Force is 
Authorized.

After all reasonable means of preventing or 
apprehending a suspect have been exhausted, 
DEADLY FORCE is authorized in the following 
crimes:

(a) Kidnapping
(b) Murder in the 1st or 2nd degree
(c) Manslaughter
(d) Arson (Including the use of firebombs)

No. 92-6196 Gamer v. Memphis Police Dept., eta l. 9



(e) Rape
(f) Assault and battery with intent to carnally know 
a child under 12 years of age
(g) Assault and battery with intent to commit rape
(h) Burglary in the 1st, 2nd, or 3rd degree
(i) Assault to commit murder in the 1st or 2nd 
degree
(j) Assault to commit voluntary manslaughter
(k) Armed and simple robbery

App. 81 (emphasis added). This order was signed by the 
Director of the Memphis police. The Mayor of Memphis 
testified in a deposition that he was also involved in the 
decision to include all types of burglary on the list of 
felonies justifying use of deadly force: "One of the
arguments was to eliminate burglary and this type thing, 
some kinds of burglary, which I did not do. I did not 
think it should be done." App. 103. Defendants do not 
contest that General Order 5-74 represented the official 
policy of the Memphis Police Department and the City of 
Memphis.

Defendants argue instead that it was not a policy under 
the Monell line of cases because it did not represent a 
"deliberate choice to follow a course of action . . . from 
among various alternatives." Pembaur v. City o f 
Cincinnati, 475 U.S. 469, 483 (1986). In devising their 
fleeing felon policy, defendants relied on a Tennessee 
statute, Tenn. Code Ann. § 40-7-108:

Resistance to Officer - If after notice of the 
intention to arrest the defendant, he either flee or 
forcibly resist, the officer may use all the 
necessary means to effect the arrest.

Defendants argue that they had no choice but to follow 
this statute.

This argument is without merit. The defendants were 
bound to follow the statute in that they could not adopt a 
more permissive deadly force policy by, for example.

10 Gamer v. Memphis Police Dept., et al. No. 92-6196



eliminating the requirement that an officer give notice of 
an intention to arrest before employing deadly force. The 
statute did not, however, prevent the defendants from 
adopting a more restrictive deadly force policy. In fact, 
defendants did exercise their fre^om  to choose a more 
restrictive policy, refusing to authorize use of deadly force 
to apprehend certain non-violent felony suspects such as 
embezzlers and frauds. App. 93; see also Tennessee v. 
Gamer, 471 U.S. at 5 (noting that Memphis' policy was 
slightly more restrictive than the Tennessee statute). 
Defendants' decision to authorize use of deadly force to 
apprehend nondangerous fleeing burglary suspects was, 
therefore, a deliberate choice from among various 
alternatives under Pembaur.

Having identified the policy and connected it to the 
defendants, plaintiff need only show that the policy caused 
the injury complained of, the death of plaintiff's son. See 
Coogan, 820 F.2d at 176. Defendants did not in their 
briefs or at oral argument contest the causation issue. The 
Police Department taught Officer Hymon that it was 
proper to shoot a fleeing burglary suspect in order to 
prevent escape. That was their policy. Gamer /, 600 
F.2d at 53. As the Supreme Court stated in this case, 
"Hymon was acting under the authority of a Tennessee 
statute and pursuant to Police Department policy." 
Tennessee v. Gamer, A ll U.S. at 4. Thus, there is a 
sufficient link between defendants' deadly force policy 
and Hymon's actions to establish that the policy was the 
"moving force of the constitutional violation." See 
Monell, 436 U.S. at 694. Plaintiff has satisfied all of the 
Monell requirements.

Defendants raise two additional objections to plaintiffs 
motion for partial summary judgment. First, they argue 
that the Police Department and the City should be 
dismissed from the case because the district court 
dismissed Officer Hymon, finding that he had not 
committed a constitutional violation. The district court 
found that Officer Hymon "acted within his duties as a 
reasonable police officer without malice, predisposition or

No. 92-6196 Garner v. Memphis Police Dept., eta l. 11



racial animus and within the guidelines afforded him as a 
Memphis policeman." Defendants rely upon City o f Los 
Angeles v. Hellety 475 U.S. 796 (1986), in which the 
Court upheld the district court's dismissal of the City of 
Los Angeles and its Police Commission, holding that "[i]f 
a person has suffered no constitutional injuiy at the hands 
of the individual police officer, the fact that the 
departmental regulations might have authorized the use of 
constitutionally excessive force is quite beside the point." 
Id. at 799.

Defendants' reliance on Heller is misplaced. The point 
in Heller was that the city could not be held responsible 
for a constitutional violation which could have occurred 
but did not. In the instant case there is no doubt that a 
constitutional violation occurred. "A police officer may 
not seize an unarmed, nondangerous suspect by shooting 
him dead. The Tennessee statute is unconstitution^ 
insofar as it authorizes the use of deadly force against 
such fleeing suspects." Tennessee v. Garnery 471 U.S. at 
11. The district court's holding to the contrary was 
overturned by this court, and the Supreme Court affirmed. 
Gamer //, 710 F.2d 240; Tennessee v. Garnery, 471 
U.S. 1.

This court upheld Officer Hymon's dismissal from the 
case not because he committed no constitutional violation, 
but because he was protected by the doctrine of qualified 
immunity. Tennessee v. Garnery 471 U.S. at 5; Gamer 
IIy 710 F.2d at 242; Gamer /, 600 F.2d at 54. Under the 
law of this circuit, a municipality may not escape liability 
for a § 1983 violation merely because the officer who 
committal the violation is entitled to qualified immunity. 
Doe V. Sullivan County, Tenn.y 956 F.2d 545, 554 (6th 
Cir.), cert, deniedy 113 S. Ct. 187 (1992).

Defendants' final argument is that a municipality may 
be held liable under § 1983 only if its policy reflects 
"deliberate indifference" to constitutional rights under 
City of Canton, Ohio v. HarriSy 489 U.S. 378, 392 
(1989). They argue that they were not "indifferent" to the

12 Gamer v. Memphis Police Dept., et al. No. 92-6196



constitutional rights of fleeing felony suspects, but 
developed their policy in the good faith belief that it was 
within constitutional limits. Harris addressed the question 
under what circumstances a municipality is liable "if a 
concededly valid policy is unconstitutionally applied by a 
municipal employee" because of the municipality's failure 
to adequately train that employee. Harris, 489 U.S. at 
387.

Harris is a "failure to train" case, and is not on point. 
The "deliberate indifference" test is employed to 
determine when "inadequate training can justifiably be 
said to represent 'city policy.'" Id. at 390. In the instant 
case there is no question that General Order 5-74 can 
justifiably be said to represent City policy. The 
distinction between the type of case to which Harris is 
properly applied and the case at bar is apparent from the 
follow passage from Harris, in which the Court illustrates 
how the "deliberate indifference" test would be applied in 
a variation on the Tennessee v. Gamer fact pattern:

For example, city policymakers know to a moral 
certainty that their police officers will be required 
to arrest fleeing felons. The city has armed its 
officers with firearms, in part to allow them to 
accomplish this task. Thus, the need to train 
officers in the constitutional limitations on the use 
of deadly force, see Tennessee v. Gamer, 471 
U.S. 1 (1985), can be said to be "so obvious," that 
failure to do so could properly be characterized as 
"deliberate indifference" to constitutional rights.

Id. at 390 n. 10. This case is not a variation on Tennessee 
V. Gamer, it is Tennessee v. Gamer. There is no need 
for an elaborate analysis of whether the defendants' 
failure to act was the result of such "deliberate 
indifference" that it was essentially a matter of policy. 
Far from failing to train their officers in the constitutional 
limitations on die use of deadly force, defendants trained 
their officers to exceed these limitations. That the 
defendants did not intend to violate the Constitution is no

No. 92-6196 Garner v. Memphis Police Dept., et al. 13



defense. In Harris, -deliberate indifference" refers to 
indifference to injuries likely to result from a failure to 
act, not indifference to whether such injunes consUtute 
deprivation of a constitutional right.

Having decided that plaintiffs motion for partial 
summary judgment should have been granted, the only 
remaining question is the appropriate disposition of me 
case. Under 28 U.S.C. § 2106, mis court has junsdiction 
to "remand me cause and direct the entry of such 
appropriate judgment, decree, or order, or require such 
furmer proceedings to be had as may be just under me 
circumstances." In a case such as this, where bom sides 
have had an opportunity to present evidence, me facts ^ e  
uncontroverted, and the proper disposition is clear, this 
court may direct me entry of summary judgment See 
Nazay, 949 F.2d at 1328; Weber v. J 0 4  F.2d 796, 
798 n.2 (2d Cir. 1986), cen. denied, 483 U.S. 1020 
(1987); Morgan Guaranty Trust Co. v. Martin, 466 F.2d 
593, 600 (7th Cir. 1972).

Accordingly, we REVERSE the district court's grant of 
summary judgment in favor of the defendants and its 
denial of plaintiffs partial summary judgment motion. 
We also REMAND with directions mat the distnct court 
enter an order of partial summary judgment in favor of 
the plaintiff on the issue of liability. The only issue 
remaining for the district court to resolve upon remand is 
me appropriate measure of damages.

14 Garner v. Memphis Police Dept., et al. No. 92-6196



SUHRHEINRICH, Circuit Judge, dissenting. The 
majority reverses the district court's decision and grants 
sumrnary judgment in favor of Gamer on the issue of 
liability. Bemuse I believe that the majority's actions 
ignore the facts of this case and the law of this circuit, I 
must respectfully dissent.

I.

This case began eighteen years ago when Officer 
Hymon, a young black policeman with the Memphis 
Police Department, shot and killed Edward Gamer, 
another young black man who, though unarmed, was 
attempting to avoid arrest for the burglary he had just 
committed. Officer Hymon's decision, made in a split 
second and under potentially-threatening conditions, has 
been evaluated and re-evaluated in courtrooms from the 
Western District of Tennessee to the United States 
Supreme Court.

This litigation has spanned and, in some instances, 
created many of the most profound changes in the law 
surrounding actions brought under the Civil Rights Act of 
1871, 18 U.S.C. § 1983. In 1975, when this suit was 
filed, it was absolutely clear that the City and the Police 
Department, the only remaining defendants in this case, 
could not even be sued under § 1983. Moreover, it was 
virtually undisputed that a police officer could use all 
reasonably necessary force, including deadly force, to 
stop a fleeing felon. The Tennessee legislature adopted 
the common law "fleeing felon" mle before the turn of 
this century, Tenn. Code Ann. § 40-7-108, and that

No. 92-6196 Gamer v. Memphis Police Dept., et al. 15

^See Monroe v. Pape, 365 U.S. 167 (1961) (municipalities not 
"persons" within the meaning of § 1983), overruled by Monell v. 
Department o f Social Services, 436 U.S. 658 (1978). Originally, the 
City and the Department, not amenable to suit under § 1983, were 
sued directly under the Fourth and Fourteenth Amendments and the 
general federal question statute, 28 U.S.C. § 1331, in a Bive«j-sMe 
action. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 
(1971).



statute had withstood repeated state and federal judicial 
scrutiny.

Officer Hymon's conduct was assailed as 
unconstitutional despite the fact that the Tennessee statute 
and the long-standing common law rule specifically 
authorized the use of deadly force in such circumstances. 
In 1976, the district court entered judgment in favor of the 
defendants on the grounds that the shooting of young 
Gamer was not a violation of the United States 
Constitution.

This court affirmed the district court's judgment as to 
the individual defendants but remanded for 
reconsideration in light of Monell v. Department o f Social 
Services^ 436 U.S. 658 (1978), which had held that 
municipalities could be sued under § 1983.2 The district 
court again entered judgment for the City and the 
Department, again on the grounds that there had been no 
constitution^ deprivation. This court again reversed, 
holding that Officer Hymon's actions violated the Fourth 
and Fourteenth A m endm ents.^ That decision was 
affirmed by the United States Supreme Court and the case 
was once again remanded to the district court for 
consideration of the City's and Department's liability 
under M onell.^ Again, the district court found no 
liability, this time on the grounds that intervening case 
law in this circuit prevents a city from being held liable 
for "Gamer'' shootings that occurred before the Supreme 
Court's ruling on that issue. Now, again, this court is 
determined to reverse.

16 Gamer v. Memphis Police Dept., et al. No. 92-6196

^Garner v. Memphis Police Dep 7, 600 F.2d 52 (6th Cir. 1979).
^Garner v. Memphis PoliceDep't, 710 F.2d 240 (6th Cir. 1983) 

(hereinafter "Gamer IP).
^Tennessee

"Gamer").
V. Gamer, 465 U.S. 1098 (1985) (hereinafter



A. Monell

No. 92-6196 Gamer v. Memphis Police Dept., et al. 17

It has been clear, at least since 1978, that liability in 
this case, if any, must be determined under Monell. The 
majority, continually dissatisfied with the district court's 
results, now enters summary judgment itself against the 
City and the Department on that basis. The majority errs, 
in my view, because the facts of this case, as presented in 
the record before us, do not support Monell liability.

The majority correctly sets forth the three elements of 
Monell liability: (1) an official "policy" or "custom" (2) 
created by the city or department, (3) the execution or 
implementation of which caus^ the particular 
constitutional injury. Maj. Op. at 8. See Monell, 436 
U.S. at 694. The majority identifies the policy upon 
which it would base liability, Memphis Police Department 
General Order 5-74(3)(b)(3), and holds that it is the 
official product of departmental and city policymakers. 
Maj. Op. at 8-9. I have no quarrel with the majority over 
these assessments. The majority's error, I believe, lies 
with its analysis of the third Monell element:

Having identified the policy and connected it to the 
defendants, plaintiff need only show that the policy 
caused the injury complained of, the death of the 
plaintiffs son. Defendants do not contest the 
causation issue.

Id. at 9 (emphasis added).

I disagree. The City and the Department have done 
nothing for the last eighteen years but contest the fact that 
this policy caused Gamer's death. The defendants have 
consistently and urgently pleaded with this court and the 
district court to understand that Officer Hymon acted 
under the authority of Tennessee state law, a law that 
governed the conduct of all Tennessee law enforcement. 
Now, simply because the Department and the City took 
upon themselves the task of drafting a more restrictive--



but, in the exercise of hindsight, still unconstitutional- 
policy, the majority is holding them liable. ̂

To hold the Department and the City liable, however, 
the majority must ignore the third Monell element: 
causation. The policy upon which the majority fixes 
liability is Departmental Order 5-74. The majority makes 
no mention of the fact that the order is dated February 5, 
1974, only eight months before Officer Hymon shot 
Gamer and more than six months after Officer Hymon's 
initial eight-week training course that he received upon 
joining the Department. There is no evidence that Officer 
Hymon was ever trained under Departmental Order 5-74. 
On the other hand, the record contains every indication 
that Officer Hymon was trained on the use of deadly force 
according to the guidelines established by the Tennessee 
legislature and the common law.

Even if the majority's assumption is correct, that 
between February and October of 1974, Officer Hymon 
was informed of Departmental Order 5-74, it is illogical 
to assume that he was instructed as to anything other than 
how the new policy differed from the state guidelines and 
common law rule he had already been taught.

It is not disputed that Officer Hymon's actions that 
night came within that portion of the fleeing felon rule 
that Departmental Order 5-74 left unchanged. He had 
been taught, before Departmental Order 5-74 was ever 
written, that he was allowed, even duty-bound, to use 
deadly force in such situations, provided it was reasonably 
necessary in order to effect the arrest. Officer Hymon 
was not "executing" or "implementing" Departmental 
Order 5-74 when he shot Gamer; he was acting as he had 
been taught to act, in accordance with a one-hundred-and-

18 Gamer v. Memphis Police Dept., et al. No. 92-6196

®GivMi this court’s decision in Carter v. City o f Chattanooga, 
850 F.2d 1119 (6th Cir. 1988) (en banc), cert, denied, 488 U.S. 1010 
(1989), discussed infra, the City and the Department in this case will 
most assuredly be me only entities held liaole for acting in relian(^ 
upon the hundreds of years of the fleeing felon rule, at least in this 
circuit.



sixteen-year-old statute and a common law rule that had 
existed for hundreds of years. Therefore, it cannot be 
said that the Department's policy was the "moving force 
of the constitutional violation."

The majority is impaled upon the horns of a dilemma. 
It cannot hold the City and the Department liable for 

failing to draft a constitutional policy or for failing to 
train its officers in the constitutional use of deadly force. 
These theories require a showing of the City's and the 
Department's "deliberate indifference" to the rights of 
arrestees. Such a showing is impossible in this case due 
to the centuries of approval courts had given the fleeing 
felon rule. Nor can the majority rest liability on the 
statute or the common law, the patently obvious "moving 
forces" here, because these cannot be fairly attributed to 
the City. The majority's only means of holding the City 
and the Department liable, therefore, is to assert that 
Departmental Order 5-74 killed Gamer, despite the fact 
that there is no evidence to support a conclusion that 
Officer Hymon was "executing" or "implementing" that 
policy, rather than the statute or common law, when he 
shot Garner.^

B. Carter

In 1982, after the shooting in this case but before the 
Gamer decision, a Chattanooga police officer shot and 
killed a fleeing burglary suspect. Carter v. City o f  
Chattanooga^ 850 F.2d 119 (6th Cir. 1988) (en banc), 
cert, denied, 488 U.S. 1010 (1989). In Carter, therefore, 
neither the City of Chattanooga nor its police department 
had any more reason to believe that the common law rule 
or Section 40-7-108 of the Tennessee Code were 
unconstitutional than did the City and the Department in 
the case before us now. On those grounds, in Carter, a

No. 92-6196 Gamer v. Memphis Police Dept., et al. 19

®Ironically, the majority cannot even assert that the Department 
is liable for failing to train its officers under the new policy in a more 
timely manner because the new policy made no change to the fleeing 
felon rule relevant to the shooting of Uamer.



majority of this court en banc held that the city was not 
liable for the unconstitutional shooting. The majority in 
this case, however, refuses to adhere to this holding.

The court in Carter reasoned that it would be pointless 
and inequitable to impose liability for a city's failure to 
foresee the Supreme Court’s decision in Gamer, because 
Gamer "established a new and unexpected principle of 
law setting aside clear precedent, particularly in this 
circuit, on which the City of Chattanooga and its police 
officers had a right to rely.** Carter, 850 F.2d at 1129 
(emphasis added). Pointless, because to impose liability 
would "have little, if any, effect of furthering the 
deterrent goal of Gamer.*' Id. at 1130. Inequitable, 
because the City of Chattanooga "was more than merely 
exercising good faith [as to a murky area of the law]; it 
was acting in reliance on what appeared over many years 
to have been valid and proper state directed police conduct 
and policy." /(/. at 1131.

The district court, in the present case, found "no basis 
upon which to distinguish the Carter decision from this 
case and the issue presently before the court." 
Accordingly, it entered summary judgment in favor of the 
City and the Department. The majority rejects the district 
court's conclusion and asserts that Carter has no impact 
because "the Supreme Court intended its ruling in 
[Garner^ to be applied retroactively to the parties." In 
this single utterance, the majority misconstrues both the 
Carter and the Gamer decisions.

The Supreme Court's holding in Gamer was carefully 
limited to declaring unconstitutional the actions of officer 
Hymon and the Tennessee statute which authorized them. 
No one is arguing that Gamer should not be applied 
retroactively. The Supreme Court's holding is l^ing 
given full force and effect; it is now undisputed in this 
case, just as it was undisputed in Carter, that the officer's 
shooting was unconstitutional. The ultimate issue, 
however, both in Carter and in the present case, is 
whether the City and the Department are liable in

20 Gamer v. Memphis Police Dept., et al. No. 92-6196



damages for that deprivation. On this issue, the Supreme 
Court carefully expressed no opinion and thus there is 
nothing to be given "retroactive effect." In Carter^ on the 
other hand, this court squarely held that such liability 
could not be imposed. The majority's cryptic warning, 
therefore, that "[njeither this court nor the district court is 
free to reexamine the Supreme Court's ruling," is 
misdirected. It is the majority that should take care not to 
attribute to the Supreme Court rulings it has not made.

To be sure, a panel of this court in Gamer II opined 
that the City's and the Department's reliance was 
irrelevant. Gamer //, 710 F.2d at 248-49. Carter, 
however, disavowed this dicta and held that a City's good 
faith reliance on the fleeing felon rule prior to the 
Supreme Court's decision in Gamer precludes liability for 
pre-Garner shootings. Therefore, I would hold that the 
district court correctly applied Carter to resolve this case 
in favor of the City and the Department. The majority 
errs, in my view, by refusing to give Carter controlling 
effect.

No. 92-6196 Garner v. Memphis Police Dept., et al. 21

II.

Cleamtee Gamer has persuaded the highest court in the 
land to declare, without equivocation, that his son died in 
violation of some of this county's most deeply-held 
principles. Just as fundamental, however, is the principle 
upon which this court relied in Carter, it is simply not 
fair, and not in keeping with the letter, the purpose or the 
intent of 42 U.S.C. § 1983 to hold the City and the 
Department liable in damages for young Gamer's death 
when they could not have known that the actions of its 
officers were unconstitutional. The determination that the 
death of Mr. Gamer's son was unconstitutional is, and 
must be, a separate question from whether the citizens of 
Memphis must compensate that tragedy under § 1983.

If Mr. Gamer's legal fees are properly awarded under 
his pleadings and the applicable law, let him collect them;



and let the City and the Department pay. For now, 
however, this case should be over.

I would affirm the district court's judgment in favor of 
the City and the Department and, therefore, respectfully 
dissent.

22 Gamer v. Memphis Police Dept., et al. No. 92-6196



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